Appellate court overturns ruling on USERRA's 'escalator principle'

Posted On: Sep. 23, 2013 12:00 AM CST

Judy Greenwald

Workers returning from military service must be considered for discretionary promotions they might otherwise have received, and not just automatic promotions, says an appellate court in overturning a lower court ruling.

Luis Rivera-Meléndez, a member of the U.S. Naval Reserve who had been called up to active duty in Iraq between December 2008 and October 2009, sued his employer, New York-based Pfizer Pharmaceuticals L.L.C., because he had not been considered for promotion to active pharmaceutical ingredient team leader, a position that had been created while he was away, according to Friday's ruling by the 1st U.S. Circuit Court of Appeals in Boston in Luis A. Rivera-Meléndez; Wanda Otero-Rivera; conjugal partnership Rivera-Otero v. Pfizer Pharmaceuticals L.L.C.

While he was on active duty away from his job in Pfizer's Barceloneta, Puerto Rico, facility, his previous position of API group leader was eliminated, and upon his return he was appointed to the post of API service coordinator, which had fewer job responsibilities than his previous position, said the appellate ruling.

Mr. Rivera sued Pfizer, charging it with violating the Uniformed Services Employment and Reemployment Rights Act of 1994. A U.S. District Court in Puerto Rico granted summary judgment to Pfizer in 2011, ruling that under USERRA, Mr. Rivera was not entitled to the promotion because it was not an automatic one, and instead involved employer discretion.

Mr. Rivera appealed the ruling, and the United States filed an amicus brief supporting him.

Under the “escalator principle” and “reasonable certainty” concepts that are incorporated into USERRA, Mr. Rivera should have been considered for the promotion to team leader, said a unanimous three-judge panel.

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The escalator principle refers to “the position that the employee would have attained if his or her continuous employment had not been interrupted due to uniformed service,” said the appellate court in quoting Department of Labor regulations.

“As a general rule, the employee is entitled to re-employment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service,” the regulations say.

The Department of Labor “declined to alter the regulations to indicate that discretionary/nonautomatic promotions would not be subject to the escalator principle and the reasonable certainty test,” said the decision, in overturning the lower court's ruling.

The case was remanded to the District Court, to consider whether it was reasonably certain Mr. Rivera would have received the promotion if his work had not been interrupted by military service.